Requirements for electronic messages between insurer and insured

The EU Electronic Signatures Directive and the EU E-commerce Directive have both been implemented into Dutch law. In order to improve electronic communication between insurers and insureds, in 2008 the Dutch legislature passed a decree containing rules on the sending of electronic messages with respect to insurance contracts (February 8 2008).(1)

The decree complements Article 7:933 of the former Civil Code, which was in effect until July 1 2010. Article 7:933(1) prescribed that all messages from an insurer contingent on the provisions of Title 7.17 (which sets down the Dutch insurance law) or the insurance contract must take place in writing. Furthermore, Article 7:933(2) stipulated that rules may be laid down by order in council with regard to the sending of electronic messages.

The decree contains requirements that an insurer must satisfy when sending messages electronically. First, it must be possible to save electronic messages on a permanent device.(2) A permanent device could be a USB stick, a hard disk or a CD-ROM.

Second, the insured must give explicit permission for electronic messages.(3) In this respect, checking a specific box on the insurance contract or a separate form is considered to be explicit permission. Separate permission is required if the insurer intends to send electronic messages to parties other than the insured.(4) Under the decree, this permission for electronic messages can also be revoked.

In order to be able to state with legal certainty that an electronic message has reached the addressee, the addressee must confirm receipt of the message to the insurer.(5)

The aforementioned provisions do not apply to messages that, according to Title 7.17 of the Civil Code, must be sent by registered letter.(6) Such messages may not be sent electronically.

Moreover, insurers may not impose demands in the insurance terms and conditions which differ from those stipulated in the decree.(7) This establishes – by statutory law – that electronic messages from insurers must satisfy the requirements cited in the decree.

On July 1 2010 the proposed Act Amending Several Provisions of the Code of Civil Procedure and the Dutch Civil Code took effect.(8) This act amended Article 7:933(2) of the Civil Code, among other articles. Article 7:933(2) now states that rules may also be set for sending messages electronically to the insurer. This also includes messages that may be prompted by Title 7.17 of the Civil Code or the insurance contract.

In accordance with this act, the legislature adopted a new decree containing rules on the sending of electronic messages in the context of an insurance contract (January 25 2011). The new decree will take effect on July 1 2011. As a result, the 2008 decree will no longer have effect.

In the 2011 decree, the aforementioned rules of the 2008 decree concerning electronic messages by insurers to insureds and other addressees remain virtually unchanged. However, there is one important change - the 2011 decree no longer contains the requirement of confirmation of receipt. This requirement does not apply for receipt of the electronic insurance policy and therefore cannot be required in relation to other electronic messages.

In addition, it is now stipulated that electronic messages from the insured to the insurer are also possible, provided that such messages can be stored on a permanent device. Unlike in the case of messages from the insurer to the insured, the insurer need not grant explicit permission for electronic messages from the insured.

For further information on this topic please contact Elsbeth Hulshof or Sanne Rutten at Dirkzwager Advocaten En Notarissen by telephone (+31 26 353 8300), fax (+31 26 351 0793) or email ([email protected] or [email protected]).